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erty interests, to focus section 2(b)'s thrust to those additions which the author creates. Such greater verbal precision is welcome.
Folk music, over the past 10 years, has become an important facet of the popular music industry. Because of the music's marketability, those concerned with it have sought to claim interests which run counter to traditional notions of folk music's availablity. Where there is legitimate creativity, as in arrangements of folk music, such originality should be rewarded. However, the Copyright Act, in its final form, should retain the mechanism with which claims of total authorship in demonstrably folk material can be prosecuted. Respectfully submitted.
STEVEN DAVID PRICE.
THE PUBLISHERS ASSOCIATION,
London, June 18, 1965. Re Manufacturing clause. The CHAIRMAN AND MEMBERS, JUDICIARY SUBCOMMITTEE ON COPYRIGHT, House of Representatives, Washington, D.C.
GENTLEMEN: The Publishers Association of the United Kingdom begs leave to Llace before you this submission of their views on the manufacturing requirements contained in chapter 6 of the proposed new U.S. copyright bill, H.R. 4347.
This association, founded in 1896, represents British book publishers in all fields, including those of university and other educational publishing, as well as paperback, general and children's book publishing. The association's members between them represent some 95 percent of the turnover of all book publishers in the United Kingdom.
We respectfully submit that the manufacturing requirements contained in the present l'.S. copyright law, and substantially retained in the proposed new bill have no place whatever in copyright legislation. They represent a fiscal measure which, if needed at all, should in our view be dealt with separately outside the copyright law. We know of no other country in the world—not excluding the Communist countries which has any legislation similar to this, and we cannot believe that a country such as yours, dedicated to liberty and the freedom of the mind, can feel justified in retaining such an anachronistic embargo.
The manufacturing provisions deny American and domiciliary authors rights which are freely and properly given to foreigners. They represent a barrier to that free flow of printed thought which is essential to the mutual understanding of mankind.
We believe that the Register of Copyrights himself has urged the abolition of the manufacturing clause, and we know that this has also been argued by the American publishing organizations. It appears, however, that it is the printers, or their labor unions, that oppose this step. Since American book production exceeds that of any other country in the world, and American book exports are now slightly higher in value than British book exports (which have hitherto been the largest in the world) we feel that it cannot be seriously maintained that American printers need this protection. Indeed, it seems probable that British and other printers might be more in need of it. This association, however, has always supported absolutely the essential principle of the free flow of books. We were recently instrumental in securing exemption for books from our own Government's 15 percent import surcharge, even though our member publishers were not directly concerned. We should, therefore, equally oppose any proposals to institute something similar to the manufacturing clause in the United Kingdom. And for all these reasons we strongly urge that the provisions be expelled from your own copyright law.
As you may know, a congress of the International Publishers Association was recently held in Washington. The following resolution, moved by this associa. tion was unanimously adopted :
“That this congress condemns any legislation which restricts copyright protection to works of indigenous manufacture and urges any government administering such a restriction to repeal it in the interests of the full freedom of works of the mind.” May we commend these thoughts to your most earnest consideration. Yours faithfully,
RONALD E BARKER, Secretary.
COPYRIGHTING OF PUBLICLY FINANCED INFORMATIONAL MATERIAL OPPOSED
A STATEMENT OF M. B. SCHNAPPER, EDITOR OF PUBLIC AFFAIRS PRESS In view of the nature and scope of the problems relating to section 8 of the Copyright Act the new phrasing proposed by the Copyright Office leaves much to be desired.
The pertinent present phrasing of the law states that “No copyright shall subsist in any publication of the U.S. Government * * *." The supplementary phrasing proposed by the Copyright Office is as follows: "A work of the U.S. Government within the scope of his official duties or employment."
In realistic terms the definition of a work of the “U.S. Government" recommended by the Copyright Office is highly unsatisfactory because it can be interpreted both too narrowly and too loosely. If, for example, it is interpreted in the light of longstanding Copyright Office policy it means that almost everr. one in the Government service is free to place copyright restrictions on virtually any type of material prepared at public expense. This is well nigh inevitable for the simple reason that relatively few Government employees are specifically required to perform the function of writers.
The fundamental fact is that while the scope of official employment rarely specifies writing functions they necessarily have to be performed by practically every civil servant above the clerical level. While it may not be necessary to identify each type of written statement that cannot be copyrighted, it is clearly essential to be unambiguous about the copyrightability of material prepared at public expense. If there are to be any exceptions they ought to be spelled out, not left wide open.
Parenthetically, it should be noted that the proposed definition is patently inadequate in that it places a premium on the ability of a public servant to commercialize on privileged Government resources available to him but outside "the scope of his official duties or employment.”
It is significant that the new phrasing proposed by the Copyright Office auto matically would sanction a vast amount of copyrighting that has been done in what appears to be blatant violation of the existing law.
It is also significant that the new definition would permit copyrighting of research material commissioned by the Government and paid for by the taxpayer at a cost of about $15 billion a year. Most of this material is prepared by private contractors who are presently allowed and even encouraged to commercialize knowledge ostensibly amassed in the public interest.
And it is exceedingly significant that the profits derived from copyrighting of material prepared at the taxpayer's expense are based largely on royalties paid by public entities-local, State, and National (including schools, libraries and Government agencies). In effect, the public pays a double subsidy for the privilege of access to public property transformed into private property.
In conclusion it should be emphasized that the phrasing proposed by the Copyright Office is contrary to Public Law 86–726 (28 U.S. Code, sec. 1498b) in which it is stated that a valid copyright does not subsist in a work “prepared by a person while in the employment or service of the United States, where the copyrighted work was prepared as a part of the official functions of the employee, or in the preparation of which Government time, material, or facilities were used * *
[Extract from Congressional Record, Oct. 22, 1965) COPYRIGHT RESTRICTIONS ON GOVERNMENT-FINANCED RESEARCH
OPPOSED BY SENATORS LONG AND YARBOROUGH
PROTECTION OF PUBLIC INTEREST IN RESULTS OF RESEARCH PAID FOR BY FEDERAL
Mr. YARBOROUGH. Mr. President, through grants and contracts, the Federal Government has spent billions of dollars to aid scientific research and development. Information gained from this research should be made freely available to the press, to scholars, to private enterprise, and to the public at large. We in Congress have provided in several bills authorizing research expenditures that "all information, copyrights, uses, processes, patents and other developments" resulting from Government research expenditures "will be freely available to the general public" by adding to these bills the so-called Long amendment. I wholly agree with the Senator from Louisiana (Mr. Long) that a provision of this type belongs on every bill authorizing research expenditures.
Although many agencies have resisted applying the Long amendment to their activities, support for this concept has been shown by the U.S. Office of Education, which published a statement of policy in the Federal Register of July 28 which will prohibit the copyrighting of any "material produced as a result of any research activity undertaken with any financial assistance" from that office. The statement of policy declared that:
"Material produced as a result of any research activity undertaken with any financial assistance through contract with or project grant from the Office of Education will be placed in the public domain. Materials so released will be available to conventional outlets of the private sector for their use.
“This policy is effective immediately.”
I congratulate the Commissioner of Education, Mr. Francis Keppel, for the outstanding leadership he has shown in adopting this policy for the Office of Education.
The Office of Education has declared that the main thrust of its policy is to assure competition in the production and dissemination of different versions of curricular materials. As Deputy Commissioner of Education Henry Loomis stated in a conference held with representatives of educational organizations after the policy statement was published:
"We want to make this material available to the maximum number of people, in the shortest time, with a minimum of restrictions."
The efforts of the Office of Education are endangered by proposed changes in the copyright laws. The Copyright Office has proposed an amendment to section 8 of the Copyright Act which would undermine the efforts of both those supporting the Long amendment as well as the new policy of the Office of Education.
Section 8 of the Copyright Act now provides that “No copyright shall subsist in any publication of the C.S. Government."
The Copyright Office amendment, which is contrary to present policy, and which would sanction extensive copyrighting by Government officials and Government research contractors, states as follows in a bill now before the Senate Judiciary Committee :
"Copyright protection under this title (sec. 10.5, Subject Matter of Copyright: C.S. Government Works) is not available for any work of the U.S. Government, but the U.S. Government is not precluded from receiving and holding copyrights transferred to it by assignment, or otherwise.
"A 'work of the U.S. Government is a work prepared by an officer or employee of the U.S. Government within the scope of his official duties or employment.”
The American Newspaper Publishers Association and the National News. paper Association, who stand firmly against copyright restrictions on Government-financed international material, oppose the change proposed by the Copyright Office.
The American Newspaper Publishers Association, a trade association of daily newspapers with more than 930 members, having more than 90 percent of the total U.S. daily newspaper circulation, stated as follows on May 10:
“While we are gratified to note that this bill does not contain the provision set forth in a prior version, which would have permitted copyright to be secured in a published work of the U.S. Government in appropriate cases as determined by heads of U.S. Government agencies, the present bill still leaves much to be desired.
“It establishes no standards whatever regarding the ownership of copyrighted material created in the course of performing contracts between private individuals or corporations and the U.S. Government."
The quoted section of the Copyright Office amendment would permit a person, not a Government employee, who performs research work financed either in whole or in substantial part by Federal funds, to secure a copyright on the published results of his research done with Government money.
I do not mean to say that there would not be instances in which equity would dictate that a copyright should be allowed for a limited term of years. Nor would I rule out the possibility of allowing a person to copyright a subsequent publication drawing on the results of his Government-financed research, so long as all the information contained therein has already been made public.
In this time when more and more research is being paid for by the Federal Government, we must be careful to safeguard the public's right of access to information which it has paid for.
In this connection, Mr. President, I would like to call the Senate's attention to the statement made by Senator Long of Louisiana before the Education Subcommittee of the Labor and Public Welfare Committee on June 11, and ask unanimous consent that it be printed in the Record at this point, along with an editorial from the August 8, 1965, Washington Post, and an excerpt from a statement by Robert T. Jordan of the Council on Library Resources.
Senator Long has been waging a great and noble fight for good government in this matter of the disposition of the results of publicly financed research, and I am proud to be associated with him in this effort.
(There being no objection, the material was ordered to be printed in the Record, as follows :)
STATEMENT BY SENATOR RUSSELL B. LONG BEFORE THE EDUCATION SUBCOMMITTEE,
LABOR AND PUBLIC WELFARE COMMITTEE, U.S. SESATE
Section 8 of the copyright law expressly stipulates that: “No copyright sball subsist in any publication of the U.S. Government or any reprint in whole or in part thereof * * *.” The original and continuing purpose of this prohibition is to assure maximum availability and dissemination of informational material prepared by or for the Government at the expense of the public. Jy amendment insures that knowledge developed by contractors and grantees at great public expense shall also be freely available to the press, to scholars, to private enterprise, and to the public at large. Since Federal outlays for research now total over $15 billion annually, this matter is of far-reaching importance.
The basic question involved is whether research financed by the Gorernment should be subject to copyright control for as long as 56 years, or should such research be freely accessible to all segments of our society.
The present practices of many Government agencies permit research contractors and grantees to sell exclusive publishing rights to the fruits of publicly financed research. This, in my judgment is contrary to the public interest.
Since private book publishers have in the past reaped millions in profits from such practices, it is, of course, understandable that they should be raising objections to the Long amendment. This does not, however, justify the selfserving misrepresentations they have been making.
I refer especially to the misrepresentations in "Copyright Aspects of the Long Amendment on Government Research," a memorandum recently distributed among Members of Congress by the American Book Publishers Council and to the testimony by W. Bradford Wiley on behalf of the council and the American Textbook Publishers Institute before the Senate Subcommittee on Education.
The position taken by these trade associations is that private publishers should be permitted to copyright Government-financed research because the Long amendment, they contend, will limit the audience for such research, "socialize" publication of such research, and increase the taxpayer's expenses. None of these self-serving representations have any basis in fact. Let us examine them.
1. The claim that prohibition of copyright restrictions over Governmentfinanced material will aiscourage private publication and thereby reduce public accessibility of such material is patently fallacious.
For years noncopyrightable statements by Government officials, papers by Government scientists, and reports by Government agencies have been widely published by newspapers, popular magazines, and professional journals of all kinds. Even book houses have frequently published such noncopyrightable material when they felt there was a market.
According to the American Book Publishers Council, much of the material re. sulting from Government-financed research is of such limited interest that private publication is not feasible unless publishers are granted copyright control restrietions for 56 years. If, in fact, no publishing house could afford to share the market with others because the market is so small, why should any publisher of a work of narrow appeal fear a second publisher's competition or need a copyright monopoly?
Would not the second publisher know that he could not make a profit since someone else had preempted the market ? Wouldn't the very fact of a limited market protect the initial publisher of Government research?
Where a substantial market exists, publishers have not hesitated to reprint works in the public domain without a copyright monopoly. As is evident in any bookstore, there are innumerable editions of works by well-known and unknown authors in the public domain. And judging by the large number of instances when Government publications in the public domain have been successfully reprinted by private publishers, it is evident that private publishing firms can issue Government materials without copyright monopoly, even in the face of and simultaneously with Government Printing Office editions. Significantly, at least five publishers reprinted, for example, the Warren Commission Report, and the Surgeon General's report on smoking was also widely published in competition with editions published by the Government Printing Office.
Moreover, it is ridiculous to contend that publications of the Government Printing Office enjoy meager distribution and promotion. If the contention were true, then private editions of such publications could be published with little concern about competition from the Government. If not true, that is, if the Government Printing Office publications do receive wide publicity and enjoy large-scale sales--then private copyrighting of Government-financed works is clearly unjustitiable. It happens to be a matter of record that some of the all-time American best sellers have been Government Printing Office publications.
Jany of these publications have sales in the millions of copies and most of them in the hundreds of thousands. For example, over 13 million copies of "Infant Care" have been sold, over 7.6 million copies of "Your Federal Income Tax," over 7.4 million of "Prenatal Care," over 5.7 million of "Your Child From One to Six," and many others. It is my understanding that the book publishing industry regards as a best seller any book of which over 50,000 copies have been sold.
In brief, the “limited audience" argument fails both in logic and experience.
2. It is argued that publication by the Government costs the taxpayer money which could be saved research works are issued privately under copyright. Yet, the fact is that many publications of the Government Printing Office are selfsupporting. For years the Superintendent of Documents has operated at a budgetary profit because the net income from public purchases of Government Printing Office publications has generally been in excess of the cost of such publications.
What the publishers are seeking is privileged monopolies denying the public access to what it has already paid for unless it makes an additional payment to the publisher who happened to secure the copyright. They argue that the Federal Government should both finance the research and protect private profit in its publication through a copyright monopoly. This is tantamount to saying that the Government should finance the building of highways and then permit private companies to charge tolls.
In brief, the “expense" objection is a transparent argument and is not worthy of extended discussion. It is most unfortunate that Government agencies oftenand improperly—as I understand it, subsidize private publication of Government research material, frequently at an expense far in excess of the cost involved if such material were published by the Government Printing Office.
3. In his statement before the Senate Subcommittee on Education on May 20, W. Bradford Wiley, the representative of the American Book Publishers Council and the American Textbook Publishers Institute declared that a copyright is not analogous to a patent. He is quite right.
Patent protection is limited to a period of 17 years. Under present law copyrights can run to 56 years and if a bill now before Congress is approved, they can remain in effect for more than 100 years. Moreover, a patent cannot be obtained without official scrutiny of its legitimacy and substantiation of the claims by the inventor. All that is necessary to secure a copyright is merely to make an assertion of ownership without providing any proof whatsoever.
By legal requirement all the ideas of a patent are supposed to be accessible to the public. The same is not true of a copyright. The book publishers are not correct in stating that copyrighted material must be "published” and “made available to the public generally." Under the present law literally thousands of unpublished works are under copyright restrictions for 56 years even though they are not available to the public. All that is necessary to secure a copyright is to furnish two copies of an item, typed or photocopied, to the Copyright Office. Availability to the public is not required in actual practice.
Nor is it entirely correct that "everyone is * * completely free to use the information and ideas" appearing in a copyrighted work. Publishers have ini.